Citation Nr: 0613556
Decision Date: 05/10/06 Archive Date: 05/17/06
DOCKET NO. 03-21 990 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for a psychiatric
disorder, excluding post-traumatic stress disorder (PTSD).
2. Entitlement to service connection for right Achilles
tendonitis.
3. Whether new and material evidence has been submitted to
reopen a claim for service connection for a respiratory
disorder, claimed as asthma and/or bronchitis.
4. Whether new and material evidence has been submitted to
reopen a claim for service connection for lumbar and cervical
spine disorders.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Raymond F. Ferner, Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from rating decisions of the Department
of Veterans Affairs (VA) Regional Office (RO) in Jackson,
Mississippi, that denied the benefits sought on appeal. The
veteran, who had active service from October 1969 to July
1971, appealed those decisions to the BVA, and the case was
referred to the Board for appellate review.
Supplemental Statements of the Case dated in July and August
2003 addressed issues of entitlement to service connection
for additional disorders beyond those set forth on the title
page of this decision. However, in a VA Form 9 (appeal to
Board of Veterans' Appeals) dated in June 2003 and August
2003, as well as in hearing testimony presented to the RO in
November 2003, the veteran limited his appeal to those issues
set forth on the title page of this decision.
The veteran has filed a separate claim for service connection
for post-traumatic stress disorder that has not been
adjudicated by the RO. Therefore, the Board has
characterized the issue on appeal as entitlement to service
connection for a psychiatric disorder, excluding PTSD.
The veteran's petition to reopen his claim of service
connection for recurrent bronchitis, also claimed as asthma,
is REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC, to ensure compliance with
applicable law. VA will notify the veteran if further action
is required on his part.
FINDINGS OF FACT
1. The veteran is not shown to have a psychiatric disorder
that is causally or etiologically related to service.
2. The veteran is not currently shown to have right Achilles
tendonitis, and any right Achilles tendonitis that may be
present is not shown to be causally or etiologically related
to service.
3. An unappealed July 1982 rating decision denied service
connection for lumbar and cervical spine disorders.
4. The evidence associated with the claims file subsequent
to the July 1982 rating decision relates to an unestablished
fact necessary to substantiate the claim.
5. The veteran is not shown to have a lumbar or cervical
spine disorder that is causally or etiologically related to
service.
CONCLUSIONS OF LAW
1. A psychiatric disorder, excluding PTSD, was not incurred
in or aggravated by active service, nor may a psychosis be
presumed to have been so incurred. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2005).
2. Right Achilles tendonitis was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1110, 1154,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159,
3.303, 3.304 (2005).
3. The July 1982 rating decision, which denied service
connection for lumbar and cervical spine disorder, is final.
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2005).
4. The evidence received subsequent to the RO's July 1982
rating decision is new and material, and the claim for
service connection for lumbar and cervical spine disorders is
reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156
(2005)
5. Lumbar and cervical spine disorders were not incurred in
or aggravated by active service, nor may arthritis be
presumed to have been so incurred. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Before addressing the merits of the veteran's claims on
appeal, the Board is required to ensure that the VA's "duty
to notify" and "duty to assist" obligations have been
satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002);
38 C.F.R. § 3.159 (2005). The notification obligation in
this case was accomplished by way of a letters from the RO to
the veteran dated in May 2001 and May 2002. While this
notice does not provide any information concerning the
evaluation or the effective date that could be assigned
should service connection be granted, Dingess v. Nicholson,
No. 01-1917 (U.S. Vet App. Mar 3, 2006), since this decision
affirms the RO's denial of service connection, the veteran is
not prejudiced by the failure to provide him/her that further
information.
The RO also provided assistance to the veteran as required
under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as
indicated under the facts and circumstances in this case.
The veteran and his representative have been kept appraised
of the RO's actions in this case by way of the Statement of
the Case and the Supplemental Statements of the Case, and
been informed of the evidence considered in the case, the
pertinent laws and regulations and a rationale for the
decision reached in denying the claims. The veteran and his
representative have not made the RO or the Board aware of any
additional evidence that needs to be obtained in order to
fairly decide this appeal, and have not argued that any error
or deficiency in the accomplishment of the duty to notify and
duty to assist has prejudiced him in the adjudication of his
claims. Therefore, the Board finds that duty to notify and
duty to assist have been satisfied and will proceed to the
merits of the veteran's claims.
The veteran essentially contends that the disorders he is
seeking to establish as service-connected disabilities are
related to service. More specifically, with respect to the
right Achilles tendonitis and asthma, it is contended that
both disorders were treated during service and that he has
continued to experience symptomatology associated with both
disorders. As for the claim for service connection for
lumbar and cervical spine disorders, the veteran contends
that he was involved in two motor vehicle accidents during
service and that his currently diagnosed disorders are
related to those injuries.
In general, service connection will be granted for a
disability resulting from an injury or disease incurred in or
aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R.
§ 3.303. Service connection may also be granted for certain
chronic diseases, such as arthritis or a psychosis, when the
disease is manifested to a compensable degree within one year
of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113;
38 C.F.R. §§ 3.307, 3.309. In addition, a preexisting injury
or disease will be considered to have been aggravated by
active service where there is an increase in disability
during service unless there is a specific finding that the
increase in disability is due to the natural progress of the
disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.
That an injury occurred in service is not enough. There must
be a chronic disability resulting from that injury. If there
is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b). Service connection may be granted for
any disease diagnosed after discharge, when all of the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R.
§ 3.303(d). Generally, to prove service connection, the
record must contain: (1) Medical evidence of a current
disability, (2) medical evidence or in certain circumstances,
lay testimony, of an inservice incurrence or aggravation of
an injury or disease, and (3) medical evidence of a nexus or
a relationship between a current disability and the inservice
disease or injury. Pond v. West, 12 Vet. App. 341 (1999);
Caluza v. Brown, 7 Vet. App. 498 (1995).
A rating decision dated in October 1981 denied service
connection for lumbar and cervical spine disorders. The
veteran expressed disagreement with the decision and
initiated an appeal but did not complete his appeal by filing
a Substantive Appeal, and therefore the decision is now
final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.
As a general rule, a claim shall be reopened and reviewed if
new and material evidence is presented or secured with
respect to a claim that is final. 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156. When a veteran seeks to reopen a final
decision, the first inquiry is whether the evidence presented
or secured after the last disallowance is "new and material."
Under 38 C.F.R. § 3.156(a), new and material evidence is
defined as evidence not previously submitted which bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself or in conjunction with the evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a).
When determining whether a claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992). In order for
evidence to be sufficient to reopen a previously denied
claim, it must be both new and material. If the evidence is
new, but not material, the inquiry ends and the claim cannot
be reopened. Smith v. West, 12 Vet. App. 312 (1990).
Furthermore, "material evidence" could be "some new evidence
[that] may well contribute to a more complete picture of the
circumstances surrounding the origin of the veteran's injury
or disability, even where it will not eventually convince the
Board to alter its rating decision." Hodge v. West, 155 F.
3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new
and material evidence has been submitted, the claim must be
reopened and the VA may then proceed to the merits of the
claim on the basis of all the evidence of record.
Service Connection for a Psychiatric Disorder, Excluding PTSD
The veteran's service medical records contain no evidence of
complaints, treatment or a diagnosis of any psychiatric
disorder. The veteran's service medical records show that in
February 1970, when the veteran was having complications of
asthma, he was noted to be anxious and tense and was
prescribed medication, but the veteran's service medical
records do not show that he was ever diagnosed as having a
psychiatric disorder. Noteworthy is the fact that a physical
examination performed in June 1971 in connection with the
veteran's separation from service indicated that the
psychiatric clinical evaluation was normal and no psychiatric
diagnosis was recorded in the summary of defects and
diagnoses.
Medical records dated following separation from service
clearly demonstrate that the veteran has been diagnosed as
having various psychiatric disorders. However, none of the
psychiatric disorders were diagnosed for many years following
the veteran's separation from service. However, there is no
medical evidence that suggests that any of the psychiatric
diagnoses first diagnosed following separation from service
have any relationship to the veteran's period of active
service.
Therefore, the Board finds that in the absence of any
indication of a psychiatric disorder during service; the fact
that no psychiatric disorder was demonstrated for many years
following the veteran's separation from service, and that no
competent medical examiner has opined that the veteran has a
mental disorder that is related to service, the preponderance
of the evidence is against the veteran's claim. The
evidentiary gap in this case between active service and the
earliest diagnosis of a psychiatric disorder essentially
constitutes negative evidence that tends to disprove the
veteran's claim that he had a psychiatric disorder during
service that resulted in a chronic disability or persistent
symptoms. See Forshey v. West, 12 Vet. App. 71, 74 (1998);
aff'd sub. nom, Forshey v. Principi, 284 F.3d 1335, 1358
(Fed. Cir. 2002) (noting that the definition of evidence
encompasses "negative evidence" which tends to disprove the
existence of an alleged fact). Therefore, the Board
concludes that service connection for a psychiatric disorder
is not warranted.
The veteran was advised of the need to submit medical
evidence demonstrating a nexus or relationship between a
current psychiatric disorder in service by way of the May
2001 and May 2002 letters from the RO to him, but he failed
to do so. A claimant has a responsibility to present and
support a claim for benefits under laws administered by the
VA, 38 U.S.C.A. § 5107(a), and the veteran was clearly
advised of the need to submit medical evidence of a
relationship between a current disability and service. While
the veteran may clearly be of the opinion that his current
psychiatric disorder is related to service, as a lay person,
the veteran is not competent to offer an opinion that
requires specialized training, such as the etiology of a
medical disorder. Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992). Accordingly, the Board concludes that service
connection for a psychiatric disorder, excluding PTSD, is not
established in the absence of competent medical evidence
demonstrating a relationship between a current psychiatric
disorder and service.
Right Achilles Tendonitis
The veteran's service medical records show that he was seen
for complaints associated with right Achilles tendon that was
diagnosed as right Achilles tendonitis. Treatment included
providing the veteran with a physical profile limiting his
duty in April 1970. The veteran was seen for ultrasound
treatment in April and May 1970, but his physical therapy was
discontinued in early May when he did not return. The
veteran's service medical records contain no further
reference to the veteran's right Achilles tendonitis and the
physical examination performed in June 1971 in connection
with the veteran's separation from service shows a clinical
evaluation of the lower extremities was normal and no
pertinent defects or diagnoses were noted.
The service medical records appear to demonstrate that the
veteran's right Achilles tendonitis manifested during service
was acute and transitory in nature and resolved following
appropriate treatment. This is supported not only by the
lack of additional complaints and treatment referable to the
veteran's right Achilles tendon after May 1970 until the
veteran's separation from service in July 1971, but also by
the lack of any pertinent complaints referable to the right
Achilles tendon for over a decade following the veteran's
separation from service. The earliest reference to any
complaints associated with the right Achilles tendon appears
to be contained in an April 1982 outpatient treatment record,
but that record makes no reference to a history of complaints
since service, thus indicating the lack of a chronic
disorder. See McManaway v. West, 13 Vet. App. 60, 66 (1999)
(Chronicity is not demonstrated when the sole evidentiary
basis for the asserted continuous symptomatology was the
sworn testimony of the claimant and when "no" medical
evidence indicated continuous symptomatology.).
While there is a VA outpatient treatment record dated in June
1982 which shows the veteran reported complaints of right
foot pain, no diagnosis pertaining to the right foot or the
right Achilles tendon was recorded. Beyond those records
specifically referable to the right lower extremity, the
record suggests the earliest mention of the veteran's ankle
or feet is a March 1998 private medical record which
contained a diagnosis of plantar fasciitis and noted that the
veteran's complaints were greater on the left rather than the
right for that bilateral disorder. In any event, there is no
medical evidence of record which offers any opinion that the
veteran currently has any right foot or ankle disorder that
is causally or etiologically related to the right Achilles
tendonitis treated during service.
Therefore, the Board finds that in the absence of any
indication of a chronic right Achilles tendon disorder during
service and the fact that no pertinent complaints were
demonstrated for many years following the veteran's
separation from service, the preponderance of the evidence
is against the veteran's claim. The evidentiary gap in this
case between service and the earliest symptomatology
associated with the right lower extremity essentially
constitutes negative evidence that tends to disprove the
veteran's claim that the right Achilles tendonitis manifested
in service resulted in a chronic disability or persistent
symptoms. See Forshey v. West, 12 Vet. App. 71, 74 (1998);
aff'd sub. nom. Forshey v. Principi, 284 F.3d 1335, 1358
(Fed. Cir. 2002) (noting that the definition of evidence
encompasses "negative evidence" which tends to disprove the
existence of an alleged fact).
The veteran was advised of the need to submit medical
evidence demonstrating a nexus between a current right tendon
disorder and service by way of the May 2001 and May 2002
letters from the RO to him, but he failed to do so. A
claimant has the responsibility to present and support a
claim for benefits under laws administered by the VA,
38 U.S.C.A. § 5107(a), and the veteran was clearly advised of
the need to submit medical evidence of a relationship between
a current disability and service.
While the veteran may be of the opinion that he has a current
right Achilles tendon disorder that is related to service, as
a lay person, the veteran is not competent to offer an
opinion that requires specialized training, such as the
diagnosis or etiology of a medical disorder. Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, the
Board concludes that service connection for right Achilles
tendonitis is not established in the absence of competent
medical evidence demonstrating a relationship between a
current disorder and service.
Lumbar and Cervical Spine Disorders
Reopening of the Claim
The October 1981 and July 1982 rating decisions which
previously considered and denied the veteran's claim for
lumbar and cervical spine disorders did so on the basis that
there was no evidence of such a disorder related to service.
The evidence associated with the claims file subsequent to
those rating decisions consists of later dated private and VA
medical records, as well as statements and hearing testimony
from the veteran.
The January 2004 statement from Harry A. Danielson, M.D.,
relates that based on a history of the veteran, the
reliability of that history, and the absence of other trauma,
it was Dr. Danielson's opinion that the veteran's cervical
and lumbar pathology was causally related to his jeep
accident in the military when, according to the veteran, his
jeep flipped in 1970. Presumed credible, this opinion raises
a reasonable possibility of substantiating the veteran's
claim, and the Board therefore finds that new and material
evidence to reopen the previously denied claim has been
submitted. The veteran's claim will be reviewed based on all
of the evidence of record.
The Merits of the Claim
The veteran's service medical records contain one entry dated
in December 1969 indicating that the veteran was seen for
complaints of low back pain. The veteran's service medical
records do not demonstrate or document that the veteran was
involved in any injuries or motor vehicle accidents during
service, and the physical examination performed in June 1971
in connection with the veteran's separation from service
indicates that the veteran's spine was normal on clinical
evaluation. No pertinent defects or diagnoses were recorded
following that examination.
The veteran has also stated in the current attempt to obtain
service connection that while serving on active military duty
in Korea as a military policeman, he was shot in the shoulder
and the bullet lodged in his back. He has also stated that
he was involved in an automobile accident, while on active
duty but stationed at the Presidio in California.
Given the complete absence of any mention in the veteran's
service medical records of these three presumably serious
incidents, the Board finds that the veteran is untruthful in
his account. As such, the veteran's service medical records
do not substantiate the underlying premise of Dr. Danielson's
opinion that the veteran was involved in a jeep accident
during service that resulted in his current cervical and
lumbar pathology. Thus, the probative value of the opinion
from Dr. Danielson is completely undermined by the lack of
any injury during service, and indeed, Dr. Danielson
indicated that his opinion was based on the reliability of
the history provided by the veteran. The Board finds the
appellant's account to be wholly untruthful. Duran v. Brown,
7 Vet. App. 216, 220 (1994); see Samuels v. West, 11 Vet.
App. 433, 436 (1998) (Where the veteran sought service
connection for post-traumatic stress disorder, based upon
multiple stressors occurring during "combat" in Vietnam, and
the record clearly showed he had never served in Vietnam, no
presumption of credibility attached to his statements of his
in-service claimed stressors); see also Godfrey v. Brown, 7
Vet. App. 398, 407 (1995) (Where the report of the Social
Security Administration [SSA] reflected that its findings
were based on the veteran's disability encompassing "twenty-
year history of back problems," as evidenced by "medical
evidence" and the medical evidence as evidenced in the SSA
file shows no such history, the SSA statement cannot be
presumed to be credible when on its face it conflicts with
the lack of substantiation for it in the very medical
evidence on which it is expressly premised).
Other medical evidence of record also tends to weigh against
the veteran's claim. An October 1981 statement from Robert
A. Grobenstein, D.C., indicates that the veteran reported
that in February 1970 he had injured his back while playing
football and that he received treatment following that
injury. However, no injury to the veteran's back in February
1970 or at any other time is documented or demonstrated by
the veteran's service medical records. Dr. Grobenstein also
recorded that the veteran had sustained an on-the-job injury
on or about 1974 and that on or about March 1981 he had
injured his low back in a lifting-type injury. Following
Dr. Grobenstein's examination, the diagnoses were lower
cervical resulting in bilateral brachial radiculitis and
lower lumbar intervertebral disc strain resulting in
bilateral sciatica.
There is also a private medical record dated in January 1995
which indicates that the veteran had experienced low back
pain since 1986 when he was involved in a motor vehicle
accident. While that record, as well as other treatment
records contain a history reported by the veteran of an
injury during service, the veteran's service medical records
do not substantiate that history reported by the veteran to
various health care practitioners.
Since the January 2004 opinion from Dr. Danielson appears to
be the only medical opinion which suggests a relationship
between a currently diagnosed lumbar and cervical spine
disorder and service, an opinion which is inconsistent with
the contemporaneous service medical records, the Board finds
that the preponderance of the evidence is against the
veteran's claim for service connection for lumbar and
cervical spine disorders. Morton v. Principi, 3 Vet. App.
508, 509 (1992); Mingo v. Derwinski, 2 Vet. App. 51, 53
(1992). (Observing that evidence of the appellant's current
condition is not generally relevant to the issue of service
connection, absent some competent linkage to military
service).
Under these circumstances, for the Board to conclude that the
veteran's lumbar and cervical spine disorders had their
origin during service would be speculation, and the law
provides that service connection may not be based on resort
to speculation or remote possibility. 38 C.F.R. § 3.102;
Obert v. Brown, 5 Vet. App. 30, 33 (1993).
In the absence of competent and probative medical evidence
that the veteran's present lumbar and cervical spine
disorders are related to an incident of service, a grant of
service connection is clearly not supportable. While the
veteran is clearly of the opinion that his current lumbar and
cervical spine disorders are related to service, as a lay
person, the veteran is not competent to offer an opinion that
requires specialized training, such as the etiology of a
medical disorder. Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992). Accordingly, the Board concludes that service
connection for lumbar and cervical spine disorders is not
established in the absence of competent medical evidence
demonstrating a relationship between current lumbar and
cervical disorders in service, the opinion of Dr. Danielson
notwithstanding.
ORDER
Service connection for a psychiatric disorder, excluding
PTSD, is denied.
Service connection for right Achilles tendonitis is denied.
New and material evidence having been submitted, the claim
for service connection for lumbar and cervical spine
disorders is reopened, and to this extent, the appeal is
granted.
Service connection for lumbar and cervical spine disorders is
denied.
REMAND
The veteran also seeks to reopen a claim of service
connection for asthma and bronchitis, last denied by rating
decision dated in July 1982 and not appealed.
In Kent v. Nicholson, No. 04-181 (U.S. Vet. App. March 31,
2006), it was held that when a claimant seeks to reopen a
previously denied claim, VA must examine the bases for the
denial in the prior decision and advise the claimant what
evidence would be necessary to substantiate the element or
elements require to establish service connection that were
found insufficient in the previous denial.
Because the veteran has not been apprised in accordance with
Kent, his petition to reopen the claim of service connection
for asthma and bronchitis is REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC, for the
following development:
1. After a review of the last final
denial of the claim of service connection
for a respiratory disorder, the RO/AMC
will advise the veteran in accordance
with the decision in Kent and in
accordance with other directives from the
Veteran's Benefits Administration.
2. The RO should take such additional
development action as it deems proper
with respect to the claims, including the
conduct of any other appropriate VA
examinations, and follow any applicable
regulations and directives implementing
the provisions of the VCAA as to its
notice and development. Following such
development, the RO should review and
readjudicate the claims. See 38 C.F.R. §
4.2 (If the findings on an examination
report do not contain sufficient detail,
it is incumbent upon the rating board to
return the report as inadequate for
evaluation purposes.). If any such
action does not resolve the claims, the
RO shall issue the appellant a
Supplemental Statement of the Case.
Thereafter, the case should be returned
to the Board, if in order.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs